No IN THE SUPREME COURT OF THE UNITED STATES. March Term UNITED STATES OF AMERICA, Petitioner, -- against --

Transcription

1 24P No IN THE SUPREME COURT OF THE UNITED STATES March Term 2017 UNITED STATES OF AMERICA, Petitioner, -- against -- PAUL RUTHERFORD, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOUREENTH CIRCUIT BRIEF FOR PETITIONER

2 QUESTIONS PRESENTED There are three questions presented before this Court: 1. Whether the good faith exception to the exclusionary rule announced in United States v. Leon applies to evidence seized pursuant to a search warrant where the probable cause supporting issuance of the warrant has been established with evidence seized in violation of the Fourth Amendment. 2. Whether Federal Rule of Evidence 803(3) permits admission of a statement of a declarant s then-existing state of mind to prove conduct of someone other than the declarant. 3. Whether a criminal defendant's Sixth Amendment right of confrontation under Crawford v. Washington is violated by admitting opinion testimony of a surrogate medical examiner concerning cause of death where that opinion is based on statements in an autopsy report prepared by another, unavailable medical examiner. ii

3 TABLE OF CONTENTS QUESTIONS PRESENTED... ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv OPINIONS AND ORDERS BELOW... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED... 1 STATEMENT OF FACTS... 2 SUMMARY OF THE ARGUMENT... 4 STANDARD OF REVIEW... 5 ARGUMENT... 5 I. THE GOOD FAITH EXPCETION APPLIES WHEN AN OFFICER ACTS OBJECTIVELY REASONABLY AND IN GOOD FAITH AS PRESCRIBED BY UNITED STATES V. LEON, AS SUCH, ALL EVIDENCE OBTAINED SHOULD BE ADMITTED.5 A. Officer Scott Acted Under the Objectively Reasonable Belief That His Conduct Did Not Violate the Fourth Amendment Officer Scott s Conduct Was Identical to the Use of a Pen Register Which is Not a Search Under the Fourth Amendment An Exigency Arose Which Made Officer Scott s Warrantless Search Permissible Under the Fourth Amendment....8 B. The Resulting Search Warrant Was Sought and Executed By Agent Fonseca in Good Faith as Prescribed by Leon Agent Fonseca Fully Disclosed all Information Relating to the Predicate Search Conducted by Officer Smith The Warrant Affidavit Was Not Lacking in Indicia of Probable Cause, Therefore, Official Belief in Its Existence Was Reasonable,...11 iii

4 C. The Value of Deterrence Would Not Be Outweighed by the Substantial Social Cost of Applying the Exclusionary Rule Because Agent Fonseca Did Not Conduct the Predicate Search..13 II. THE FEDERAL RULE OF EVIDENCE 803(3) SUPPORTS THE ADMISSION OF A STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND TO PROVE THE CONDUCT OF A NON-DECLARANT. AS SUCH, SMITH S STATEMENT TO HIS FIANCÉE SHOULD BE ADMITTED TO PROVE THE CONDUCT OF THE DEFENDANT, RUTHERFORD..15 A. The Plain Language of Rule 803(3) Supports the Admission of Hearsay About a Declarant s State of Mind to Prove the Conduct of a Non-declarant,.15 B. The Legislative History of the Federal Rule of Evidence 803(3) Supports the Plain Language Interpretation of Rule 803(3) and Also Demonstrates That Congress Did Not Intend to Limit the Admissibility of Third Party Conduct...18 C. The Purpose of Admitting Rule 803(3) to Prove Third Party Conduct Is Highly Relevant Because It Meets the Indicia of Reliability III. THE FOURTEENTH CIRCUIT ERRED IN HOLDING THAT DR. CHIN S EXPERT TESTIMONY VIOLATED THE CONFRONTATION CLAUSE OF AND IT IMPROPERLY EXLUDED THE EVIDENCE BECAUSE THE TESTIMONY IS PERMISSIBLE UNDER THE FEDERAL RULES OF EVIDENCE AND AUTOPSY REPORTS ARE NOT SUBJECT TO CONFRONTATION..23 A. Dr. Chin s Testimony Is Constitutional Under the Federal Rule of Evidence 703 Because the Autopsy Report Is Not Offered for Its Truth, the Expert Will Provide Independent Testimony, and the Probative Value of the Testimony Substantially Outweighs the Prejudicial Harm. 24 B. Dr. Fleischer s Autopsy Report Is Admissible and Not Subject to the Confrontation Clause Because (1) Autopsy Reports Are Non-Testimonial Statements; and (2) They Are Business Records Exempt From Confrontation Autopsy Reports Are Non-Testimonial Because Their Sole Purpose Is Not Prosecutorial, and They Are Scientific Evidence Based on Objective Facts Autopsy Reports Are Business Records Exempt From Confrontation Because They are Reliable and Public Policy Reasons Warrant Admissibility...30 iv

5 Conclusion...33 v

6 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES: Bedrocltd. v. United States, 541 U.S. 176 (2004) Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988) ,19 Bourjaily v. United States, 483 U.S. 171 (1987) Bullcoming v. New Mexico, 564 U.S. 647 (2011) ,25,26,27,28,29 Crawford v. Washington, 541 U.S. 36 (2004) ,27,29,20,30,31,32 Caminetti v. United States, 242 U.S. 470 (1917) Davis v. United States, 564 U.S. 229(2011) ,13,14,15 Davis v. Washington., 547 U.S. 813 (2006) Dunaway v. N.Y., 442 U.S. 200 (1979) Franks v. Delaware, 438 U.S. 154 (1978)...5 Herring v. United States, 555 U.S. 135 (2014)..6,13,14 Huddleston v. United States, 485 U.S. 681(1988) Illinois v. Gates, 462 U.S. 213 (1983) ,10,13 Illinois v. Krull, 480 U.S. 340 (1987)...13,14 I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).16,17 I.N.S. v. Phinpathya, 464 U.S. 183 (1984)...15,16 Ker v. Cal., 374 U.S. 23 (1963).....9,10 Mapp v. Ohio, 367 U.S. 643 (1961)...13 Melendez Diaz v. Massachussets, 557 U.S. 305 (2009) 24,25,26,28,29,31,32 Michigan v. Bryant, 562 U.S. 344 (2011).24,27 Minnesota v. Olson, 495 U.S. 91 (1990)..8 Muscarello v. United States, 524 U.S. 125 (1998) 16 Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285 (1892) 17,18,20 North Dakota v. United States, 460 U.S. 300, 312 (1983)...18,20 Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189 (1985)...16 Smith v. Maryland, 442 U.S )...7,8 Terry v. Ohio, 392 U.S. 1 (1968). 9 Tome v. United States, 513 U.S. 150 (1995).19 United States v. Brown, 333 U.S. 18, 26 (1948) 18 United States v. Leon, 468 U.S. 897 (1984)..5,6,8,10,11,12,13,14 Welsh v. Wisconsin, 466 U.S. 740 (1984)...8,10 Williams v. Illinois, 132 S. Ct (2012) 24,25, 26 UNITED STATES COURT OF APPEAL CASES: Isle Royale Boaters Ass n v. Norton, 330 F.3d 777 (6th Cir. 2003)..19 States v. Rosa, 11 F.3d 315 (2nd Cir. 1993) 30 Terrovona v. Kincheloe, 852 F.2d 424, 427 (9th Cir. 1988) 21, 22 United States v. Calvert, 523 F.2d 895 (8th Cir. 1975).20 United States v. Cervantes-Flores, 421 F.3d 825 (9th Cir. 2005).27 United States v. Console, 13 F.3d 641 (3d Cir. 1993) 31,32 United States. v. De La Cruz, 514 F.3d 121 (2008) 31,32,33 vi

7 United States v. Donley, 878 F.2d 735 (3d Cir. 1989).20 United States v. Felix, 467 F.3d 227 (2nd Cir. 2006)...28,30 United States v. Fletcher, 91 F.3d 48 (8th Cir. 1996).6 United States v. Forrester, 512 F.3d 500 (9th Cir. 2007) 7 United States v. Ignasiak, 667 F.3d 1217 (11th Cir. 2012)..28,20 United States v. Jenkins, 579 F.2d 840 (4th Cir. 1978) 20,21 United States v. Keck, 643 F.3d 789 (10th Cir. 2011)..31,32 United States v. Massi, 761 F.3d 512 (5th Cir. 2014)..12,14 United States v. McClain, 444 F.3d 555 (6th Cir. 2005) 6,8,13,14 United States v. Moore, 571 F.2d 76 (2d Cir. 1978).18 United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976).18,21,22 United States v. Radka, 904 F.2d 357 (6th Cir. 1990)..8,9 United States v. Reilly, 76 F.3d 1271 (2d Cir. 1996).11 United States v. Satterwhite, 980 F.2d 317 (5th Cir. 1992)...11 United States v. Thomas, 757 F.2d 1359 (2d Cir. 1985) 11 United States v. Thornton, 746 F.2d 39 (D.C. Cir. 1984)..12 United States v. Ukomdu, 236 F.3d 333 (6th Cir. 2001)..9 United States v. White, 890 F.2d 1413 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990).6,8 United States v. Woerner, 709 F.3d 527 (5th Cir. 2013)...10 DISTRICT COURT CASES: Chicago Title Ins. Co. v. Mary B., 190 Md. App. 305, 988 A.2d 1044 (2010).21 People v. Dungo, 55 Cal.4th 608 (2012)..28,29 People v. Durio, 7 Misc.3d 729 (N.Y. Sup.Ct. 2005)...31 People v. Hall, 84 A.D.3d 79 (1st Dep t 2011)...28,29 State v. Crager, 164 Ohio App.3d 816 (2005).. 30 United States v. Houlihan, 871 F. Supp (D. Mass. 1994) 18 United States v. Johnson, 354 F. Supp. 2d 939, 963 (N.D. Iowa 2005), aff'd in part, 495 F.3d 951 (8th Cir. 2007) 23 United States v. Lentz, 282 F. Supp. 2d 399, 420 (E.D. Va. 2002), aff'd, 58 F. App x 961 (4th Cir. 2003)..21 CONSTITUTIONAL PROVISIONS: U.S. CONST. amend. IV U.S. CONST. amend. VI, LEGISLATIVE PROVISIONS United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No , 216, 115 Stat. 272 (2001)... 7 Title III the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No , tit. III, ch. 119, 82 Stat. 212 (1968) (codified at 18 U.S.C (1982))... 7 vii

8 STATUTORY PROVISIONS: 18 U.S.C. 3127(3).....7,8 18 U.S.C. 3127(4).....7,8 18 U.S.C. 3122(b)(2)... 7,8 18 U.S.C U.S.C FEDERAL RULES, ADVISORY COMMITTEE NOTES AND HOUSE REPORTS FED. R. EVID. 404(b).17 FED. R. EVID FED. R. EVID FED. R. EVID FED. R. EVID , 25, 26, 27 FED. R. EVID. 803(3)...15, 17, 18, 20,22 FED. R. EVID. 803(6).30,31 FED. R. EVID. 803(3) advisory committee s note..20 FED. R. EVID. 804(b)(2).19 FED. R. EVID. 804(b)(3).19 FED. R. EVID. 804(b)(4)...19 viii

9 OPINIONS AND ORDERS BELOW The relevant Opinion of the United States Court of Appeals for the Fourteenth Circuit, United States of America v. Rutherford (February 9, 2016), is unpublished but in the Record. R. at 41. The relevant Order of the United States District Court for the Eastern District of Boerum granting the Defendant s motion to suppress the evidence seized from his laptop, granting the Defendant s motion to exclude Smith s statement to his fiancée and granting the Defendant s motion to exclude the admission of Dr. Chin s testimony are unpublished but in the Record. R. at The Verdict, United States of America v. Rutherford (October 15, 2016) is also unpublished but in the Record. R. at 52. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV In all criminal prosecutions, the accused shall enjoy... to be confronted with the witnesses against him. U.S. CONST. amend. VI, 2 Rule 703. Bases of an Expert's Opinion Testimony: An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. FED. R. EVID Rule 803 (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will. FED. R. EVID. 803(3). Rule 803(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by--or from information transmitted by--someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity;(d) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. FED. R. EVID. 803(6). 1

10 An application under subsection (a) of this section shall include... a certification by the applicant that the information likely to be obtained is relevant to an ongoing criminal investigation being conducted by that agency. 18 U.S.C. 3122(b)(2) the term pen register means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication U.S.C. 3127(3) the term trap and trace device means a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication, provided, however, that such information shall not include the contents of any communication. 18 U.S.C. 3127(4) STATEMENT OF FACTS Defendant, Paul Rutherford, was elected as Governor of Boerum City in R. at 3. He promised to renovate the Cobble Hill Bridge and develop the areas around the bridge, and to further this goal, the city secured millions of dollars in federal grants and allocated funds from state revenue to this project. Id. In late 2013, Boerum put forth contracts totaling more than one hundred million dollars up for bids. However, after the bidders were selected, allegations arose that the bidding process was rigged and that preferential treatment was given to Rutherford s friends and supporters. Id. On June 17, 2014, the United States Attorney s Office and the FBI initiated an investigation on the matter; similarly, the Boerum State Attorney General and the Boerum State Police commenced their own investigation. R. at. 4. The United States Attorney s office interviewed Mr. Rutherford s top aid, Victor Smith, and confronted him with incriminating information about his participation in Mr. Rutherford s corruption, and Mr. Smith agreed to disclose all incriminating information about any public official that he knew or could have known. Id. On August 29, 2014, a subpoena was issued to search all electronic documents on Mr. Rutherford s computer related to the bidding process. 2

11 Mr. Smith was scheduled to testify before a grand jury on October 16, 2014, but Mr. Smith s fiancé, Anita Flores, found him dead in his bedroom on October 11, R. at 4-5. Ms. Flores spoke to the victim the night before and he told her that he was meeting Mr. Rutherford for dinner and then going out with friends for drinks. R. at 5. Mr. Smith also expressed to Ms. Flores that he discovered alarming information while reviewing documents on Rutherford s computer. Id. The Boerum State police obtained a search warrant under the supervision of State Police Officer Andrew Scott to search Mr. Rutherford s office. R. at 6. The search warrant was limited to electronically stored documents created on or before June 1, Id. While conducting the search on Mr. Rutherford s computer for documents connected to the bidding process, officer Scott looked at the recent s for clues about Mr. Smith s death, assumption that examining the to and from information in the was permissible without a search warrant given its similarity to using a pen register on a telephone. R. at 7. Fonseca included relevant law relating to the legal standard. R. at 7, n.2. He found an dated October 4, 2014 from Pestex Corp. confirming an order for pesticide Pest-X in the subject line. R. at 7. A second confirmed that the was delivered on October 10, R. at 7. On October, 12, 2014, Dr. Lawrence Fleischer examined Mr. Smith s body and produced an autopsy report pursuant to Boerum State Autopsy Law (B.S.C ) that described the condition of the body. R. at 8-9, The examiner ed the Boerum Police Department on October 12, 2014 ruling that the death was either a homicide or suicide. Mr. Rutherford was formally indicted by the Eastern District of Boerum pursuant to 18 U.S.C. 1512(a)(1) on January 21, R. at 1. In 2015, Dr. Fleischer became unavailable for purposes of testifying in trial, and Dr. Chin, relying on the facts of Dr. Fleischer s autopsy report, opined on the cause of Mr. Smith s death, attaching her Curriculum Vitae to support her qualifications. R. at

12 SUMMARY OF THE ARGUMENT This Court should reverse the Fourteenth Circuit Court s decision that: (1) the good faith exception does not apply to evidence obtained pursuant to a warrant which relies on evidence seized in violation of the Fourth Amendment; (2) Rule 803(3) does not allow statements of the declarant s then existing state of mind to prove the subsequent conduct of a non-declarant; and (3) Dr. Chin s testimony, relying on the autopsy report of an unavailable examiner, is inadmissible on the basis that the testimony violates the Confrontation Clause. All evidence seized pursuant to the warrant sought and executed by Agent Fonseca should be admitted. First, Officer Scott acted under the objectively reasonable belief that his conduct did not violate the Fourth Amendment. Second, the resulting search warrant was sought and executed by Agent Fonseca in good faith as prescribed by Leon, 468 U.S. 897, (1984). Finally, the value of deterrence would not be outweighed by the substantial social cost of applying the exclusionary rule because Agent Fonseca did not conduct the predicate search. Mr. Smith s statements to his fiancé on the night of his death is admissible under Rule 803(3). First, the unambiguous plain meaning of Rule 80(3) supports the admission of the declarant s then existing state of mind to prove the conduct of the non-declarant. Second, the legislative history of Rule 803(3) supports the plain language interpretation of Rule 803(3). Finally, admitting evidence under Rule 803(3) to prove the subsequent conduct of a nondeclarant meets the indicia of reliability. Finally, Dr. Chin s surrogate expert testimony was improperly excluded because the testimony is permissible under the Federal Rules of Evidence. The unavailable medical examiner s autopsy report does not violate the Confrontation Clause because it is a nontestimonial statement and qualifies under an exception to the Confrontation Clause. 4

13 STANDARD OF REVIEW The Court reviews criminal appeals, mixed determinations of law and fact, and constitutional issues de novo. See Miller v. Fenton, 474 U.S. 104, (1985). ARGUMENT I. THE GOOD FAITH EXPCETION APPLIES WHEN AN OFFICER ACTS OBJECTIVELY REASONABLY AND IN GOOD FAITH AS PRESCRIBED BY UNITED STATES V. LEON, AS SUCH, ALL EVIDENCE OBTAINED BY AGENT FONSECA S SEARCH SHOULD BE ADMITTED. Officer Scott and Agent Fonseca s actions do not bar the application of the good faith exception to the exclusionary rule. First, Officer Scott acted under the objectively reasonable belief that his conduct did not violate the Fourth Amendment. Second, the resulting search warrant was sought and executed by Agent Fonseca in good faith as prescribed by Leon, 468, U.S. at Finally, the value of deterrence would not be outweighed by the substantial social cost of applying the exclusionary rule because Agent Fonseca did not conduct the predicate search. A. Officer Scott Acted Under the Objectively Reasonable Belief That His Conduct Did Not Violate the Fourth Amendment. The Fourth Amendment guarantees individuals the right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. CONST. AMEND. IV. However, the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands. Leon, 468 U.S. at 906. Admitting evidence obtained in violation of the Fourth Amendment requires an assessment of the flagrancy of the police misconduct. Dunaway v. N.Y., 442 U.S. 200, 218 (1979). Where a Fourth Amendment violation has been substantial and deliberate[,] the Court has not questioned application of the exclusionary rule. Franks v. Delaware, 438 U.S. 154, 171 (1978). However, when law enforcement officers have acted in objective good faith or their 5

14 transgressions have been minor, the magnitude of the benefit [of the exclusionary rule] offends basics concepts of the criminal justice system. Leon, 468 U.S. at 908 (emphasis added). The good faith exception asks whether the facts surrounding the [warrantless intrusion] are close enough to the line of validity that the police officers were entitled to a belief in the validity of the warrant and the [warrantless intrusion]. United States v. Fletcher, 91 F.3d 48, 51 (8th Cir. 1996) (quoting United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989)). The deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue. Herring v. United States, 555 U.S. 135, 143 (2014). Under circumstances where police demonstrate deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and outweigh the cost of exclusion. Davis v. United States, 564 U.S. 229, 239 (2011) (quoting Herring, 555 U.S. at 144). However, deterrence loses much of its force when police engage in conduct with an objectively reasonable good-faith belief that their conduct is lawful, or isolated negligence. Davis, 564 U.S. at 239 (internal marks and citations omitted). When the facts and conduct surrounding a warrantless intrusion are close enough to the line of validity, a police officer may reasonably believe that his conduct did not offend the Fourth Amendment. White, 890 F.2d at 1419 (applying good faith exception despite the lack of reasonable, articulable suspicion to justify the detention of the defendant or his luggage because of the circumstances involved); see also United States v. McClain, 444 F.3d 555, 566 (6th Cir. 2005) (applying good faith exception despite lack of probable cause to justify the warrantless entry of the home because of suspected burglary). 1. Officer Scott s Conduct Was Identical to the Use of a Pen Register Which is Not a Search Under the Fourth Amendment. 6

15 The use of a pen register does not constitute a search for Fourth Amendment purposes. See Smith v. Maryland, 442 U.S. 735, (1979). The use of a pen register to survey the internet does not violate the Fourth Amendment. See United States v. Forrester, 512 F.3d 500, 513 (9th Cir. 2007). The government can obtain permission to use a pen register upon court order. 18 USC 3122(b)(2). The government s use of a pen register to obtain information is limited to routing information but not to the content of those communications. See 18 U.S.C. 3127(3), (4). In order to obtain the content of a communication law enforcement must obtain a warrant pursuant to Title III the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No , tit. III, ch. 119, 82 Stat. 212 (1968) (codified at 18 U.S.C (1982)). The Fourth Amendment protects the content of electronic communications but does not protect routing information such as to and from addresses. See Forrester, 512 F.3d at 513 (holding that individuals who use the internet have no expectation of privacy because they freely information to a third party internet service providers). The government s burden of proof to obtain a court order for a pen register does not require a showing of probable cause. See United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No , 216, 115 Stat. 272 (2001) (changing standard from a probable cause standard to a showing that the information likely to be obtained by such installation and use is relevant to an ongoing criminal investigation. ). The content of communications can be obtained by obtaining a warrant on the basis of probable cause. See generally 18 USC 2516; Officer Scott conduct was close enough to the line of validity to allow for the application of good faith exception. White, 890 F.2d at 1419; R. at 7. Viewing the to/from routing information was no different than using a pen register which is not a search. See 18 7

16 U.S.C. 3127(3), (4); Smith, 442 U.S. at ; R. at 7. Although Officer Scott did not obtain a court order at the time, he would have been able to show that viewing the routing information was relevant to an ongoing criminal investigation. 18 USC 3122(b)(2). Given the suspicious nature surrounding Mr. Smith s death, Officer Scott had reason to believe that Mr. Rutherford, a primary suspect in a homicide investigation, was hiding evidence relevant to the FBI investigation. R. at 6-7. This is no different than McClain where the officer was under the belief that a burglary was occurring entered the home without a warrant. See McClain, 444 F.3d at 566 (applying good faith exception despite the warrantless entry of the home). Notwithstanding the fact that Officer Scott did not obtain a court order, his actions were close enough to the line of validity to justify an objectively reasonable belief that he did not violate the Fourth Amendment. White, 890 F.2d at 1419; (R. at 7). Here, the burden of proof to obtain a court order was clearly met and the conduct of Officer Scott was identical to the use of a pen register. As such, Officer Scott s transgressions have been minor and application of the exclusionary rule would only offend[] basic[] concepts of the criminal justice. Leon, 468 U.S. at An Exigency Arose Which Made Officer Scott s Warrantless Search Permissible Under the Fourth Amendment. Generally, exigent circumstances exist when real immediate and serious consequences would certainly occur if a police officer were to postpone[] action to get a warrant. Welsh v. Wisconsin, 466 U.S. 740, 751 (1984). The basis for the exigent circumstances exception is that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant. United States v. Radka, 904 F.2d 357, 361 (6th Cir. 1990). Warrantless intrusions have been justified when delay would result in the imminent destruction of evidence. Minnesota v. Olson, 495 U.S. 91, 100 (1990) (internal citations omitted). In the absence of hot pursuit, there must be probable cause justifying the warrantless intrusion. Id. 8

17 At the heart of the exigent circumstances warrant exception is an emergency situation. Radka, 904 F.2d at 361. Preventing the destruction of evidence is an exigency recognized by the Court where evidence could be quickly and easily destroyed or hidden before a warrant could be obtained. Ker v. Cal., 374 U.S. 23, 40 (1963) (plurality opinion) (applying the exigent circumstances exception where police had reason to believe the defendant was in possession of drugs and was expecting the police). Establishing probable cause necessary for a warrantless search based upon exigent circumstances requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983); see also United States v. Ukomdu, 236 F.3d 333, 337 (6th Cir. 2001) (explaining that probable cause requires more than a mere possibility, the officer must have an objectively reasonable basis for their belief that criminal activity is occurring) (emphasis added). Officer Scott had probable cause to determine that an emergency situation was occurring that would excuse the warrantless search of the subject line. R. at 7. The warrantless intrusion was appropriate because Officer Scott s belief that destruction of evidence was imminent was objectively reasonable and more than a mere possibility. See Ukomdu, 236 F.3d at 337; cf R Officer Scott was aware that Mr. Rutherford was being vetted by the FBI in connection with the death of Mr. Smith. R. at 6. Given the timing of the corruption investigation, Mr. Smith s sudden passing, and the FBI investigation, Officer Scott had reasonable suspicion 1 to believe that Mr. Smith died under suspicious circumstances. R. at 7. As discussed earlier, these facts gave rise to the viewing of the routing information. Id. Within the routing information, Officer Scott discovered that Mr. Rutherford had recently contacted Pestex Corp., a well-known 1 See Terry v. Ohio, 392 U.S. 1, 21 (1968) (establishing that the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. ) 9

18 pesticide company. Id. As such, Officer Scott was reasonable in believing that there was a substantial chance of criminality afoot. See Gates, 462 U.S. at 243 n.13. Obtaining information that suggested Mr. Rutherford murdered Mr. Smith gave rise to an exigency that permitted the warrantless search. Similar to drugs seized under exigent circumstances, the inculpatory exchanges between Mr. Rutherford and Pestex Corp. could be quickly and easily destroyed, or hidden before a warrant could be obtained. Ker, 374 U.S. at 40. Officer Scott made the appropriate determination to view the content of Mr. Rutherford s because real immediate and serious consequences were at stake. Welsh, 466 U.S. at 751. That is, a murderer was at risk of disposing with any inculpatory evidence. B. The Resulting Search Warrant Was Sought and Executed By FBI Special Agent Fonseca in Good Faith as Prescribed by Leon. In Leon, the Court identified four situations in which the good faith exception to the warrant requirement does not apply: (1) when the affiant misled the magistrate; (2) when the magistrate abandoned his judicial role ; (3) when the warrant could not establish probable cause; and (4) when the warrant is so facially deficient that the officer could not believe it was valid. Leon, 468 U.S. at Agent Fonseca Fully Disclosed all Information Relating to the Predicate Search Conducted by Officer Smith. Suppression is an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Leon, 468 U.S. at This case did not present issues relating to circumstances in which the magistrate abandoned his judicial role, or where the warrant is facially deficient. Leon, 468 U.S. at 923. As such, these matters were not briefed. 10

19 The purpose of the exclusionary rule is served when an officer misleads the magistrate by not including information relating to an illegal predicate search. See United States v. Woerner, 709 F.3d 527, 534 (5th Cir. 2013) (explaining that the exclusionary rule s primary purpose of deterrence is served if an officer applying for the warrant knew or had reason to know the information was tainted and included it anyway without full disclosure and explanation ). However, the heavy burden of suppressing reliable evidence should not be available when an officer discloses any and all conduct in good faith while seeking a search warrant. Compare United States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985) (applying good faith exception despite an illegal dog sniff-search when the officer who sought and executed the subsequent warrant did everything he could to ensure the search was legal) with United States v. Reilly, 76 F.3d 1271, (2d Cir. 1996) (finding the good faith exception inapplicable when officers illegally searched the curtilage of a home then failed to describe the area searched and their suspect behavior in the subsequent warrant). As Leon prescribes, Agent Fonseca fully disclosed all material facts relating to the predicate search conducted by Officer Scott in her warrant application. 468 U.S. at 923; R. at 7. Agent Fonseca s conduct differs greatly than the officers in Reilly, 76 F.3d at (finding that the officers purposefully hid their previous misdealing s to mislead the magistrate). Agent Fonseca provided a detailed explanation providing for Officer Scott s conduct, the reasoning behind it, and the applicable legal standard for Magistrate Maddalena to review. Similar to the Officer in Thomas, Agent Fonseca did everything in her power to ensure that the warrant application and the subsequent search was legal. 757 F.2d at 1368; R. at 7. As such, there should be no doubt that Agent Fonseca complied with the requirements of Leon, 468 U.S. at

20 2. The Warrant Affidavit Was Not Lacking in Indicia of Probable Cause, Therefore, Official Belief in Its Existence Was Reasonable. An officer s good faith reliance on the validity of a warrant is appropriate when it is supported by more than a [b]are bones affidavit. See United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992) (explaining that bare bones affidavits contain wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause. ); accord Leon, 468 U.S. at 923. The good faith exception requires sufficient evidence to form the basis for an officer s reasonable good faith reliance in the issuing magistrate s probable cause determination. See United States v. Thornton, 746 F.2d 39, 49 (D.C. Cir. 1984) (finding that the officer s reliance reasonable given the breadth of evidence including a seizure of garbage, pen register recordings, and surveillance). An officer s affidavit representing an assemblage of facts discovered during an investigation can form reasonable good faith reliance. See United States v. Massi, 761 F.3d 512, 530 (5th Cir. 2014) (finding good faith exception applicable despite Fourth Amendment violation when the affiant disclosed ample evidence, relating the whole investigation). Agent Fonseca was reasonable in believing in the validity of the probable cause determination. Agent Fonseca s warrant application is far from being characterized as a bare bones affidavit as it did not contain wholly conclusory statements which would affect a magistrate s probable cause determination. Satterwhite, 980 F.2d at 321. The affidavit presented an assemblage of facts discovered during [her] investigation. Massi, 761 F.3d at 530; R. at 1-8. Similar to Massi, Agent Fonseca provided ample evidence which supported the claim that there was probable cause to believe that Mr. Rutherford was responsible for the death of Mr. Smith. Compare Massi, 761 F.3d at 530 (providing detailed information regarding any and all information relating to the investigation) with R. at 1-8. Agent Fonseca provided a detailed 12

21 account of the circumstances surrounding the allegations of the corruption investigation conducted by the Boerum State Police, the circumstances surrounding the eve of Mr. Smith s disappearance including the statements made to his fiancé, and the events leading up to and following the predicate search conducted by Officer Scott. R Under the totality of the circumstances, Magistrate Maddenlena could have easily determined that there existed a probability or substantial chance that Mr. Rutherford had reason to kill Mr. Smith and that he was hiding evidence. See Gates, 462 U.S. at 243 n.13. It is clear that Agent Fonseca s affidavit possessed sufficient indicia of probable cause to make her reliance on its validity reasonable. C. The Value of Deterrence Would Not Be Outweighed by the Substantial Social Cost of Applying the Exclusionary Rule Because Agent Fonseca Did Not Conduct the Predicate Search. The Court created the exclusionary rule with the sole purpose of deter[ring] future Fourth Amendment violations. Davis, 564 U.S. at Determining whether the exclusionary rule is an available remedy requires an analysis of the real deterrent value and the substantial costs social costs generated by the rule. Id. at 237. Exclusion is reserved for circumstances in which the heavy costs of suppression are outweighed by the deterrence benefits. Herring, 555 U.S. at 141. When a warrant is sought and executed in objectively reasonable good faith and the warrantless intrusion is caused by another party, deterrence cannot outweigh the cost of exclusion. See McClain, 444 F.3d at 566. The keystone of the exclusionary rule is deterrence. See Herring, 555 U.S. at 141. Suppression requires the heavy toll of requiring courts to ignore reliable, trustworthy evidence, therefore, exclusion should only be reserved as a last resort so that its purpose is served. Davis, 564 U.S. at 237; see, e.g. Mapp v. Ohio, 367 U.S. 643, (1961) (finding suppression appropriate when officer s forced entry into defendant s home without a warrant, 13

22 denied access to counsel, and conducted a search after restraining her). The benefit of deterrence is minimal at best when the individual seeking and executing a warrant did not violate the Fourth Amendment. See Leon, 468 U.S. at 916 (applying good faith exception where magistrate erred); Illinois v. Krull, 480 U.S. 340 (1987) (applying good faith exception based on reliance on legislatures illegal statute); Herring, 555 U.S. at 147 (applying good faith exception where another department negligently provided false information); McClain, 444 F.3d at 566 (applying good faith exception where officer who sought and executed warrant was not responsible for illegal predicate search); cf. United States v. Vassey, 834 F.2d 782, 789 (1987) (declining to apply good faith where the officer responsible for an illegal predicate search sought and executed a subsequent warrant). This is consistent with how the court has applied the exclusionary rule in the modern era. See Davis, 564 U.S. at 238 (explaining how the reflexive application of the exclusionary rule has been abandoned in favor of a rigorous cost/benefit analysis). The principal purpose of the exclusionary rule, deterrence, will not be served if evidence found pursuant to warrant sought and executed by Agent Fonseca is suppressed. See Herring, 555 U.S. at 141; R. at 2. Application of the exclusionary rule requires a balancing of the real benefits of exclusion against the cost of suppressing reliable evidence. See id. (explaining that the benefits of deterrence must outweigh the costs ). The cost of suppressing reliable evidence, which is key to the successful prosecution of a murderer cannot outweigh the benefit of deterrence when Agent Fonseca did not violate the Fourth Amendment. R. at 5-7, 12, Courts have routinely applied the good faith exception when the individual who sought the warrant in good faith, did not violate the Fourth Amendment. 3 Two cases at opposite ends of the Circuit split share this common ground. Compare McClain, 444 F.3d at 566 (determining that 3 See Leon, 468 U.S. at 916; see also Herring, 555 U.S. at 147; Krull, 480 U.S. 340 (1987); McClain, 444 F.3d at 566; Vassey, 834 F.2d at

23 most important was the fact that it was not the same officer) and Vassey, 834 F.2d at 789 (holding that the same officer who conducted a warrantless search is precluded from any reliance on the good faith exception). These cases demonstrate that the cost/benefit analysis differs if the individual who violated the Fourth Amendment and who sought/executed the warrant are not the same. This case should be treated no different. It is unreasonable to believe that the Boerum State Police would be deterred when the evidence being suppressed would solely affect a federal investigation. R. at 6. As such, the heavy cost of suppression cannot pay its way when weighed against reliable evidence being sought to vindicate the tragic death of an innocent man. Davis, 564 U.S. at 237; R. at 4, 19. II.THE FEDERAL RULE OF EVIDENCE 803(3) SUPPORTS THE ADMISSION OF A STATEMENT OF A DECLARANT S THEN-EXISTING STATE OF MIND TO PROVE THE CONDUCT OF A NON-DECLARANT. AS SUCH, SMITH S STATEMENT TO HIS FIANCÉE SHOULD BE ADMITTED TO PROVE THE CONDUCT OF THE DEFENDANT, RUTHERFORD. Rule 803(3) supports the admission of evidence of third party conduct for the following reasons. First, the plain language of Rule 803(3) is not ambiguous and Congress in no way set a limit on the scope of its application. Second, the legislative history of Rule 803(3) demonstrates that Congress intent and the Advisory Committee Notes support the admission of third party conduct rather than impose an additional requirement on the admission of third party conduct. Finally, 803(3) permits third party conduct because such evidence is high probative and meets the indicia of reliability. A. The Plain Language of Rule 803(3) Supports the Admission of Hearsay of a Declarant s State of Mind to Prove the Conduct of a Non-declarant. The plain language of Rule 803(3) is clear, unambiguous and supports the interpretation that the declarant s then-existing state of mind exception applies to third party conduct as intended by Congress. 15

24 The Federal Rules of Evidence are interpreted no different than a statute and are subject to the traditional tools of statutory construction. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 163 (1988). Statutory construction begins with ordinary meaning of the words used. I.N.S. v. Phinpathya, 464 U.S. 183, 189 (1984); accord, Muscarello v. United States, 524 U.S. 125, (1998). The duty of interpretation ends if the language is plain and admits no more than one meaning. Caminetti v. United States, 242 U.S. 470, 485 (1917). Statutory interpretation begins with the text, and the Court s duty to interpret ends there if the text is unambiguous. See BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (explaining that [t]he preeminent canon of statutory interpretation requires us to presume that [the] legislature says in a statute what it means and means in a statute what it says there ). Employing judicial restraint when interpreting statutory text is preferred when language is clear because plain meaning most effectively demonstrates legislative intent. See INS v. Cardoza-Fonseca 480 U.S. 421, (1987) (Scalia, J., concurring) (cautioning that, [j]udges interpret laws rather than reconstruct legislators intentions. Where the language of those laws is clear, we are not free to replace it with an unenacted legislative intent. ); accord Park 'N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985) ( [s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. ). The plain meaning of the rule has been relied upon by the Court when interpreting the Federal Rules of Evidence. See, e.g. Huddleston v. United States, 485 U.S. 681, 687 (1988) (determining that Rule 404(b) did not require further interpretation because doing so would superimposes a level of judicial oversight that is nowhere apparent from the language of that provision ). When the plain meaning of an evidentiary rule can resolve an issue, the Court has 16

25 found little need to take the extraordinary step of looking to legislative history for additional support. Bourjaily v. United States, 483 U.S. 171, 187 (1987) (finding no need to look beyond the plain meaning of Rule 104(a) when making a preliminary factual determination regarding the existence of a conspiracy relating to Rule 801(d)(2)(E)). The plain language of 803(3) is clear, unambiguous, and provides for no limitation on the application of the state of mind exception to the conduct of a non-declarant. See FED.R. EVID. 803(3). First, the language of 803(3) is no way sets a limit on the scope of its application in that it only applies the conduct of the declarant. The words of Rule 803(3) are plain and do not include nor mention that the declarant s then-existing state of mind statements cannot be applied to prove the conduct of a non-declarant. Plain meaning has routinely been recognized by the court as the most accurate indication of legislative intent, as such, this Court should give deference to the plain meaning interpretation rather than reconstruct [the] legislators intentions. Cardoza-Fonseca 480 U.S. at (Scalia, J., concurring). The Federal Rules of Evidence are rich with examples of limiting admissibility. Compare FED.R. EVID. 803(3) with FED.R. EVID.404(b) (limiting circumstances where character evidence can be admitted); FED.R. EVID. 407 (limiting purposes where subsequent remedial efforts may be admitted); FED.R. EVID. 408 (limiting purposes where compromise offers and negotiations can be admitted; and FED.R. EVID. 411 (limiting purposes for which liability insurance may be omitted).the fact that Rule 803(3) allows for the application of the state of mind exception to the conduct of a non-declarant speaks to the demonstrated intent of the drafters. If the drafters of Rule 803(3) intended on limiting the sweeping reach of the state of mind exception they would have done so as seen throughout the Federal Rules. 17

26 Admitting Mr. Smith s statement that he met with Mr. Rutherford at his residence to have dinner is in line with the plain meaning of Rule 803(3) and the Hillmon doctrine. Many courts have followed the Hillmon interpretation to prove the conduct of a non-declarant. See United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976) (holding under the Hillmon doctrine statements of victim to friend as to whom he intended to meet shortly before his disappearance were admissible ); see also United States v. Houlihan, 871 F. Supp. 1495, 1501 (D. Mass. 1994) (determining that plain meaning evinced Congress intent to codify the Hillmon doctrine, holding that the victim-declarant s statement of intending to meet with defendant on evening of victim s murder could be admitted to prove the meeting occurred); accord United States v. Moore, 571 F.2d 76, (2d Cir. 1978) (rejecting the claim that Congress intention was to limit Hillmon to statements of intent to prove the future conduct of just the declarant). Using Mr. Smith s statements would be no different than Pheaster, Houlihan and Moore in that his statement squarely falls within Rule 80(3). See 544 F.2d at 353; 871 F. Supp. At 1501; F.2d at Thus, admitting Smith s statement into evidence would prove that the meeting took place. B. The Legislative History of the Federal Rule of Evidence 803(3) Supports the Plain Language Interpretation of Rule 803(3) and Also Demonstrates That Congress Did Not Intend to Limit the Admissibility of Third Party Conduct Assuming arguendo that the statutory text is not conclusive, the legislative history does not clearly contradict the plain language interpretation of Rule 803(3). To the contrary, interpretation of the legislative history of Rule 803(3) demonstrates that Congress intent supports the admission of third party conduct rather than impose an additional requirement on the admission of third party conduct. If statutory language is not conclusive, legislative history should be construed to give the words their fair meaning in accord with the manifest intent of the lawmakers. United States v. 18

27 Brown, 333 U.S. 18, 26 (1948). However, without the presence of a clearly expressed legislative intention, legislative history should not vitiate the statutory language. See North Dakota, 460 U.S. at Advisory Committee Notes are the most reliable form of legislative material for the purpose of determining the intended meaning of an evidentiary rule. See Tome v. United States, 513 U.S. 150, 160 (1995). Proper statutory construction requires that plain meaning be given ultimate authority in the absence of a clearly demonstrated legislative intention. See, e.g. Isle Royale Boaters Ass n v. Norton, 330 F.3d 777, 784 (6th Cir. 2003) (describing legislative reports as a patchwork record of statements that may never gain support). However, reliance on the Advisory Committee Notes is categorically different than other forms of legislative history because they possess additional guarantees of reliability. See Rainey, 488 U.S. at 166 (explaining that Advisory Notes are given great weight because Congress did not amend the Advisory Committee s draft in any way that touches on the question before us, the Committee s commentary is particularly relevant in determining the meaning of the document Congress enacted. ). Considered scholarly commentary... the members of the Committee consult[] and consider[] the views, criticism, and suggestions of the academic community in preparing the Notes. Tome, 513 U.S. at 160. The Notes consistently demonstrate a purpose to adhere to the common law in the application of evidentiary principles, express provisions to the contrary and typically are vocal when the Rules depart from their common-law ancestry. Id.; See, FED. R. EVID. 804(b)(4) advisory committee s note ( The general common law requirement that a declaration in this area must have been made ante litem motam has been dropped, as bearing more appropriately on weight than admissibility ); FED. R. EVID. 804(b)(2) advisory committee s note ( The exception is the familiar dying declaration of the common law, expanded somewhat beyond its traditionally 19